Petition for Writ of Certiorari — Joe Gregory Carlini, Petitioner v. Paramount Pictures Corporation, et al.

Supreme Court briefMay 31, 2022

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IN THE

Supreme Court of the United States

JOE GREGORY CARLINI,

Petitioner,

PARAMOUNT PICTURES CORPORATION, ET AL.,

Respondents.

____________

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

_____________

PETITION FOR A WRIT OF CERTIORARI

_____________

ROGER N. BEHLE, JR.

FOLEY BEZEK BEHLE & CURTIS LLP

15 West Carrillo Street

Santa Barbara, CA 93101

Tel: (714) 556-1700

rbehle@foleybezek.com

Counsel for Petitioner

QUESTION PRESENTED

Joe Gregory Carlini, (“Carlini”) filed suit against

Paramount Pictures Corporation, et al. (collectively

“Paramount”) alleging that the film, What Men Want

(“WMW”) infringed the copyright to his screenplay

What the F Is He Thinking (“WTF”). Despite alleging

numerous similarities between the works –

numbering more than sixty (60) in total – the district

court, applying its own subjective literary judgment as

fact-finder, dismissed the operative complaint on

Paramount’s motion under Fed. R. Civ. P. 12(b)(6),

finding a lack of substantial similarity and access.

Following a de novo review, the Ninth Circuit

affirmed, compounding the error

The approach taken by the district court and Ninth

Circuit reflects a dangerous recent trend that has

emerged in the Ninth Circuit in which lower courts

have become increasingly unbridled in dismissing

undermining procedures designed to ensure that the

quintessentially factual question of substantial

similarity of expression is decided on a more

developed record. In copyright-infringement cases

these courts have hand-waved away such principles as

the (i) “no reasonable juror” standard, (ii) “selection

and arrangement” test, (iii) inverse-ratio rule, and (iv)

the importance of expert opinion regarding what is

often subtle and complex literary interpretation.

The dismissal gives rise to the following questions:

1. Whether the district court and Ninth Circuit

erred in applying the extrinsic test for substantial

similarity by “filter[ing] out” elements that the court

considered “common” or “unprotected,” without first

analyzing

whether

Carlini’s

selection

and

arrangement of protected and unprotected elements

in WTF are substantially similar to those of WMW.

2. Whether, in characterizing WTF’s literary

elements, both the district court and Ninth Circuit

erred by improperly substituting their subjective

literary judgment for that of the fact-finder, contrary

to the rule that dismissal of a copyright-infringement

claim at the pleading stage is proper only if no

reasonable juror could find substantial similarity

between the works.

PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption,

“Will Packer Productions, Inc.,” “Black Entertainment

Television, LLC,” “Tina Gordon Chism,” “Peter

Hyuck,” “Alex Gregory,” “Jas Waters,” “Will Packer,”

“James Lopez” and John Does 1 through 100 were

named as defendants in the district court and listed

as appellees in the court of appeals.

RELATED PROCEEDINGS



Carlini v. Paramount Pictures Corporation, et al.,

No. 2:19-cv-08306-SB-RAP, U. S. District Court for

the Central District of California. Order Granting

Motion to Dismiss Second Amended Complaint

entered Feb. 2, 2021.



Carlini v. Paramount Pictures Corporation, et al.,

No. 21-55213, U. S. Court of Appeals for the Ninth

Circuit. Judgment entered Mar. 2, 2022.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED........................................... i

PARTIES TO THE PROCEEDING .......................... iii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES ........................................ v

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 1

STATEMENT .............................................................. 1

SUMMARY OF THE ARGUMENT ............................ 3

REASONS FOR GRANTING THE WRIT .................. 6

A. The District Court and Ninth Circuit Erred

in Applying the Extrinsic Test for

Substantial Similarity. ..................................... 6

B. The District Court and Ninth Circuit Erred

by Improperly Substituting their Subjective

Judgment for That of the Fact-Finder. ............ 9

CONCLUSION .......................................................... 13

APPENDIX:

Court of Appeals Decision...................................... 1a

District Court Order............................................... 6a

Relevant Statutory Provisions............................. 43a

TABLE OF AUTHORITIES

CASES

PAGE

Abdin v. CBS Broad., Inc.,

971 F.3d 57 (2d Cir. 2020) ..................................... 3

Astor-White v. Strong,

733 Fed.Appx. 407 (9th Cir. 2018) ........................ 7

Atkins v. Fischer,

331 F.3d 988 (D.C. Cir. 2003) .............................. 11

Baxter v. MCA, Inc.,

812 F.2d 421 (9th Cir. 1987) ...................... 9, 11, 12

Benay v. Warner Bros. Entm’t,

607 F.3d 620 (9th Cir. 2010) .................................. 6

Bernal v. Paradigm Talent & Literary Agency,

788 F. Supp, 2d 1043 (C.D. Cal. 2010) .................. 8

Christianson v. West Pub. Co.,

149 F.2d 202 (9th Cir. 1945) .................................. 8

Computer Assocs. Int’l, Inc. v. Altai, Inc.,

982 F.2d 693 (2d Cir. 1992) ................................... 4

Copeland v. Bieber,

789 F.3d 484 (4th Cir. 2015) ................................ 12

Dezendorf v. Twentieth Century-Fox Film Corp.,

99 F.2d 850 (9th Cir. 1938) .................................. 12

Dillon v. NBCUniversal Media, LLC,

2013 U.S. Dist. LEXIS 100733 (C.D. Cal. June

18, 2013) ................................................................. 7

Ets-Hokin v. Skyy Spirits, Inc.,

225 F.3d 1068 (9th Cir. 2000) ................................ 2

Folkens v. Wyland Worldwide, LLC,

882 F.3d 768 (9th Cir. 2018) .................................. 9

Funky Films, Inc. v. Time Warner Entm’t Co., L.P.,

462 F.3d 1072 (9th Cir. 2006) ............................ 6, 8

Jason v. Fonda,

526 F. Supp. 774 (C.D. Cal. 1981),

incorp’d by ref, 698 F.2d 966 (9th Cir. 1982) ........ 9

Kaseberg v. Conaco, LLC,

260 F.3d 1229 (S.D. Cal. 2017) ............................ 11

Kouf v. Walt Disney Pictures & Television,

16 F.3d 1042 (9th Cir. 1994) ................................ 11

L.A. Printex Indus., Inc. v. Aeropostale, Inc.,

676 F.3d 841 (9th Cir. 2012) ........................ 2, 4, 11

Leigh v. Warner Bros., Inc.,

212 F.3d 1210 (11th Cir. 2000) ............................ 12

Malibu Textiles, Inc. v. Label Lane Int’l, Inc.,

922 F.3d 946 (9th Cir. 2019) .................................. 8

Masterson v. Walt Disney Co.,

821 Fed. Appx. 779 (9th Cir. 2020) ....................... 5

McCarthy v. Dun & Bradstreet Corp.,

482 F.3d 184 (2d Cir. 2007) ................................... 3

Meta-Film Assoc., Inc. v. MCA Inc.,

586 F. Supp. 1346 (C.D. Cal. 1984) ....................... 8

Metcalf v. Bochoco,

294 F.3d 1069 (9th Cir. 2002) ................................ 2

Peter F. Gaito Architecture, LLC v. Simone Dev.

Corp.,

602 F.3d 57 (2d Cir. 2010) ................................. 3, 4

Rentmeester v. Nike, Inc.,

883 F.3d 1111 (9th Cir. 2018) ........................ 4, 5, 8

Rice v. Fox Broad. Co.,

330 F.3d 1170 (9th Cir. 2003) ................................ 5

Schkeiban v. Cameron,

2012 U.S. Dist. LEXIS 145384 (C.D. Cal. Oct.

4, 2012) ................................................................... 7

Shaw v. Lindheim,

919 F.2d 1353 (9th Cir. 1990) ...................... passim

Sid & Marty Krofft Television Prods., Inc. v.

McDonald’s Corp.,

562 F.2d 1157 (9th Cir. 1977) ................................ 5

Skidmore v. Led Zeppelin,

952 F.3d 1051 (9th Cir. 2020) ................................ 4

Smith v. Jackson,

84 F.3d 1213 (9th Cir. 1996) .................................. 7

Swirsky v. Carey,

376 F.3d 841 (9th Cir. 2004) ........................ 7, 9, 11

Twentieth Century-Fox Film Corp. v. MCA, Inc.,

715 F.2d 1327 (9th Cir. 1983) .......................... 9, 11

Williams v. Crichton,

84 F.3d 581 (2d Cir. 1996) ..................................... 3

vii

Williams v. Gaye,

895 F.3d 1106 (9th Cir. 2018) .......................... 7, 11

Zella v. E.W. Scripps Co.,

529 F. Supp. 2d 1124 (C.D. Cal. 2007) .................. 7

Zindel v. Fox Searchlight Pictures, Inc.,

815 Fed. Appx. 158 (9th Cir. 2020) ................... 4, 5

STATUTES

17 U.S.C. § 101, et seq. (Copyright Act of 1976) ......... 1

17 U.S.C. § 102 (a)(5) ............................................. 8

28 U.S.C. § 1254(1) ...................................................... 1

RULES AND REGULATIONS

Fed. R. Civ. P. 12(b)(6) ...................................... passim

Fed. R. Civ. P. 50 ....................................................... 11

viii

PETITION FOR A WRIT OF CERTIORARI

____________

Joe Gregory Carlini respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit (Ninth

Circuit).

OPINIONS BELOW

The decision of the court of appeals (Pet. App 1a5a) is unpublished. The order of the district court

granting the Motion to Dismiss the Second Amended

Complaint (Pet. App. 6a-42a) is unpublished.

JURISDICTION

The judgment of the court of appeals was entered

on March 2, 2022. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Pertinent provisions of the Copyright Act of 1976

(17 U.S.C. §101, et seq.) and the Federal Rules of Civil

Procedure (Fed. R. Civ. Proc. 12(b)(6)) are reprinted in

the Appendix, infra, at 43a-59a.

STATEMENT

In affirming the district court’s dismissal of

Carlini’s copyright and declaratory relief claims at the

pleading stage, the Ninth Circuit disregarded or

misapplied the following core copyright principles

governing the application of the “extrinsic test” for

substantial similarity:

(a) The court must consider whether the

“selection and arrangement” of literary elements may

be substantially similar irrespective of whether each

element, standing alone, is copyright protected, see

Metcalf v. Bochoco, 294 F.3d 1069, 1074 (9th Cir.

2002);

(b) Similar elements cannot be disregarded as

unprotected scènes à faire unless they meet the

narrow exclusion for “stock” elements “indispensable”

to a given subject, see Ets-Hokin v. Skyy Spirits, Inc.,

225 F.3d 1068, 1082 (9th Cir. 2000);

defendants added or changed in their work, but must

focus exclusively on the works’ shared elements, see

Shaw v. Lindheim, 919 F.2d 1353, 1357-58 (9th Cir.

1990); and

(d) The court must not impose its subjective

judgment in evaluating the works, and may dismiss

only if no reasonable juror could find substantial

similarity, see L.A. Printex Indus., Inc. v. Aeropostale,

Inc., 676 F.3d 841, 851 (9th Cir. 2012).

By categorizing many of the key elements of WTF

as “common” or “unprotectable” in isolation, without

regard to the selection and arrangement of those

elements in combination, as to and subjectively

resolving disputes of interpretation against Carlini,

both the district court and Ninth Circuit continue a

recent alarming trend in the Ninth Circuit in which

the benefits of expert opinion are disregarded, and the

courts insert their own subjective fact finding,

usurping the jury’s role. As a result, Carlini was

denied a fair opportunity to present expert testimony

on the myriad inter-related ways in which WTF was

appropriated in WMW.

SUMMARY OF THE ARGUMENT

Circuits are split as to the test for substantial

similarity at the pleading stage. District courts in the

Ninth Circuit, and the Ninth Circuit itself, in

contravention of its own precedent, have supplanted

the (what should be) purely objective extrinsic test

with a highly subjective fact-based analysis. This

approach is reminiscent of that applied by courts the

Second Circuit, which squarely conflicts with the

approach and precedent of the Ninth Circuit. In the

Second Circuit, for example, a district court may

analyze and rule upon every aspect of the substantial

similarity test, including the subjective issues of

“‘[t]he similarities in such aspects as the total concept

and feel, theme, characters, plot, sequence, pace, and

setting.’” Abdin v. CBS Broad., Inc., 971 F.3d 57, 66

(2d Cir. 2020), quoting Williams v. Crichton, 84 F.3d

581, 588 (2d Cir. 1996). See, e.g., Peter F. Gaito

Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57,

63-64 (2d Cir. 2010) (noting that in the Second Circuit,

“it is entirely appropriate for a district court to resolve

[substantial similarity] as a matter of law” and that

when a defendant raises substantial similarity at the

pleadings stage, “a district court may consider ‘the

facts as asserted within the four corners of the

complaint’ together with ‘the documents attached to

the complaint as exhibits….’” quoting McCarthy v.

Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007)).

In contrast, in the Ninth Circuit, a district court

may only rule upon the extrinsic test of substantial

similarity as a matter of law; the subjective intrinsic

test, however, “is uniquely suited for determination by

trier of fact.” Shaw v. Lindheim, 919 F.2d 1353, 1358

(9th Cir. 1990), overruled on other grounds by

Skidmore v. Led Zeppelin, 952 F.3d 1051, 1066 (9th

Cir. 2020); see also Rentmeester v. Nike, Inc., 883 F.3d

1111, 1118 (9th Cir. 2018) (“Only the extrinsic test’s

application may be decided by the court as a matter of

law”) (citation omitted); Zindel v. Fox Searchlight

Pictures, Inc., 815 Fed. Appx. 158, 159 (9th Cir. 2020)

(same). For this reason, dismissal of copyright claims

at the pleadings stage is not favorable in the Ninth

Circuit. Zindel, 815 Fed. Appx. at 159 (“we have long

held that ‘[s]ummary judgment is not ‘highly favored’

on questions of substantial similarity” and “[c]ourts

must be just as cautious before dismissing a case for

lack of substantial similarity on a motion to dismiss.”)

(quoting L.A. Printex Indus., Inc. v. Aeropostale, Inc.,

676 F.3d 841, 848 (9th Cir. 2012)). As such, the Ninth

Circuit has held it is reversible error for a district

court to decide the intrinsic test on a Rule 12(b)

motion. See, e.g., Shaw, 919 F.2d at 1358;

Rentmeester, 883 F.3d at 1118; Zindel, 815 F. Appx. at

158.

A further conflict exists between the Ninth and

Second Circuits concerning the use of expert

testimony in works that are complex – such as

screenplays or literary works. For instance. while the

Second Circuit has held that expert testimony is

irrelevant except in situations which are highly

technical (see, e.g., Computer Assocs. Int’l, Inc. v. Altai,

Inc., 982 F.2d 693, 713 (2d Cir. 1992); Peter F. Gaito,

602 F.3d at 66), the Ninth Circuit has numerous times

held that expert testimony is not only admissible, but

needed in order to determine whether similarities in

two works regard unprotectable material. Sid &

Marty Krofft Television Prods., Inc. v. McDonald’s

Corp., 562 F.2d 1157, 1164 (9th Cir. 1977); Shaw, 919

F.2d at 1358; Zindel, 815 F. Appx. at 160. It is true

that the Ninth Circuit has held in the past that

“determining substantial similarity does not

necessarily require expert testimony.” Masterson v.

Walt Disney Co., 821 Fed. Appx. 779, 781 (9th Cir.

2020). However, the court pointed out that this has

been when “‘[n]othing disclosed during discovery could

alter the fact that the allegedly infringing works are

as a matter of law not substantially similar’” (id.,

quoting Rentmeester, 883 F.3d 1123) or when the court

“‘engage[s] in an extensive analysis of the alleged

similarities in expressive elements.’” Id., quoting Rice

v. Fox Broad. Co., 330 F.3d 1170, 1180 (9th Cir. 2003).

Therefore, a dismissal at the pleading stage based on

lack of intrinsic similarity without allowing discovery

is improper in the Ninth Circuit absent the above

mentioned extensive court analysis and/or the

absolute lack of anything which, if brought in through

discovery, would change the outcome. See Masterson,

821 Fed. App. at 780 (noting that the Ninth Circuit

had not issued a published decision affirming

dismissal of a literary work infringement case on

substantial similarity grounds before discovery has

been conducted).

In the instant case, the district court and Ninth

Circuit committed two (2) separate errors, each

warranting review by this Court, as follows:

1. The courts erred in applying the extrinsic test

for substantial similarity by filtering out elements

that the court considered common or unprotected,

without first analyzing whether Carlini’s selection

and arrangement of protected and unprotected

elements in WTF are substantially similar to those of

WMW.

2. The courts erred by improperly substituting

their subjective judgment for that of the fact-finder at

the pleading stage, contrary to the rule that dismissal

of a copyright-infringement claim at the pleading

stage is proper only if no reasonable juror could find

substantial similarity between the works.

REASONS FOR GRANTING THE WRIT

The District Court and Ninth Circuit Erred

in Applying the Extrinsic Test for

Substantial Similarity.

A close comparison of WTF and WMW reveals that

the two works are not only substantially similar, but

strikingly similar. While the works incorporate the

same “general” premise—that the main character can

read men’s minds—the use of that premise in both

works goes beyond the realm of coincidence and into

copying.

Courts in the Ninth Circuit are supposed to employ

a two-part test to determine if works are substantially

similar: an intrinsic test and an extrinsic test. Funky

Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d

1072, 1077 (9th Cir. 2006). “The ‘intrinsic test’ is a

subjective comparison that focuses on ‘whether the

ordinary, reasonable audience’ would find the works

substantially similar in the ‘total concept and feel of

the works.’” Benay v. Warner Bros. Entm’t, 607 F.3d

620, 624 (9th Cir. 2010). Because the intrinsic test is

a “subjective assessment of the concept and feel of two

works,” (Shaw, 919 F.2d at 1360), a determination of

two works’ intrinsic similarities “must be left to the

jury” (Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.

1996)). Importantly, “the intrinsic test is reserved

exclusively for the trier of fact.” Williams v. Gaye, 895

F.3d 1106, 1119 (9th Cir. 2018). Thus, as noted, the

court may rule against a plaintiff under the extrinsic

test only if “no reasonable juror could find” that the

works are substantially similar. Swirsky v. Carey, 376

F.3d 841, 844 (9th Cir. 2004).

Thus, on a motion to dismiss, courts may only

consider the extrinsic test. See Schkeiban v. Cameron,

2012 U.S. Dist. LEXIS 145384, *3 (C.D. Cal. Oct. 4,

2012). And, on a motion to dismiss or a motion for

summary judgment, a court may only conclude that

two works “are not substantially similar as a matter

of law if the court concludes that ‘no reasonable jury

could find that the works are substantially similar, or

if it concludes that the similarities between the two

works pertain only to unprotected elements of the

works.’” See Dillon v. NBCUniversal Media, LLC,

2013 U.S. Dist. LEXIS 100733, *11 (C.D. Cal. June 18,

2013) (quoting Zella v. E.W. Scripps Co., 529 F. Supp.

2d 1124, 1131 (C.D. Cal. 2007)).

Further, no court in the Ninth Circuit “has ever

affirmed the dismissal of a case alleging infringement

of a literary work without discovery in a published

opinion.” Astor-White v. Strong, 733 Fed.Appx. 407,

409 n.2 (9th Cir. 2018) (Wardlaw, J., concurring)

(emphasis added). The only published cases affirming

a 12(b)(6) dismissal for lack of substantial similarity

compared two photographs, Rentmeester v. Nike Inc.,

883 F.3d 1111 (9th Cir. 2018), and maps, Christianson

v. West Pub. Co., 149 F.2d 202 (9th Cir. 1945).

But photographs and maps are protected under an

entirely separate section of the Copyright Act, 17

U.S.C. § 102 (a)(5), and even more fundamentally,

comparing maps or photographs is an inherently

simpler task (better suited for a 12(b)(6) motion) than

comparing a literary work and a film based on that

literary work. Yet, even in that simpler context,

Rentmeester drew a dissent: “[Substantial similarity]

is an inherently factual question which is often

reserved for the jury, and rarely for a court to decide

at the motion to dismiss stage.” Rentmeester, 883 F.3d

at 1123 (Owens, J., dissenting).

In applying the extrinsic test, courts compare “not

the basic plot ideas for stories, but the actual concrete

elements that make up the total sequence of events

and the relationships between the major characters.”

Funky Films, 462 F.3d at 1077. Furthermore, two

works are considered not only substantially similar,

but also strikingly similar when the works are “so

strikingly similar as to preclude the possibility of

independent creation.” Bernal v. Paradigm Talent &

Literary Agency, 788 F. Supp, 2d 1043, 1052 (C.D. Cal.

2010) (internal quotation marks omitted) (quoting

Meta-Film Assoc., Inc. v. MCA Inc., 586 F. Supp. 1346,

1355 (C.D. Cal. 1984)); see also Malibu Textiles, Inc. v.

Label Lane Int’l, Inc., 922 F.3d 946, 953 (9th Cir. 2019)

(“Two works are strikingly similar when the

similarities between them are so great that they are

‘highly unlikely to have been the product of

independent creation.’”).

The District Court and Ninth Circuit Erred

by Improperly Substituting their

Subjective Judgment for That of the FactFinder.

“Although summary judgment is not highly

favored on questions of substantial similarity in

the court can conclude, after viewing the evidence and

drawing inferences in a manner most favorable to the

non-moving party, that no reasonable juror could find

substantial similarity of ideas and expression.”

Swirsky, 376 F.3d at 844; Folkens v. Wyland

Worldwide, LLC, 882 F.3d 768, 774 (9th Cir. 2018)

(same) (citing Shaw, 919 F.2d at 1355). Substantial

similarity is “a question of fact uniquely suited for

determination by the trier of fact.” Jason v. Fonda,

526 F. Supp. 774, 777 (C.D. Cal. 1981), incorp’d by ref,

698 F.2d 966 (9th Cir. 1982). As such, the “no

reasonable juror standard” is not just important, but

vital to due process.

It was not the district court’s role to decide whether

“the works are, in fact, substantially similar,” but only

to decide whether “reasonable minds could differ as to

the issue.” See Baxter v. MCA, Inc., 812 F.2d 421, 425

(9th Cir. 1987) (reversing summary judgment for

defendant); see also Twentieth Century-Fox Film Corp.

v. MCA, Inc., 715 F.2d 1327, 1329 n.6, 1330 (9th Cir.

1983) (reversing summary judgment; viewing works

in light most favorable to non-movant, reasonable

minds could differ whether Battlestar: Galactica

infringed Star Wars).

If this unwavering standard applies on summary

judgment, it is even more stringent on a Rule 12(b)(6)

motion, where Carlini was cut off at the knees, with

no opportunity to develop the record, take discovery

as to Paramount’s actual copying or proffer

illuminating expert testimony. Instead, the district

court, with no particular literary expertise,

conveniently

unpacked

WTF

into

isolated

abstractions, substituting its interpretations for those

of a jury.

The district judge failed to the combine the literary

elements that made WTF creative and original,

including through selection and arrangement of those

elements, and instead wrongly isolated each literary

element to make them (by design) scènes à faire. For

example, the district court concluded the “gay best

friend” character in WTF was “common in comedies,

particularly in romantic comedies, and is not a unique

plot element standing alone.” But this rendered that

one element meaningless in the context of the overall

selection and arrangement of all elements in WTF. As

stated above, there are many more aspects of these

counterpart characters that support substantial

similarity. Under the district court’s approach, any

element of any literary work—viewed in a vacuum—

could be classified as scènes à faire.

Further, the district court subjectively and

improperly characterized WTF’s plot as being a simple

“‘boy meets girl’ plot and fairly trivial.” The district

court also stated that “the love story is different from

beginning to end—except to the extent that there is a

beginning, a middle, and an end.” Additionally, the

district court erroneously isolated, and subjectively

characterized the “use of the magical powers” as a

generality. The district court completely ignored the

particular details of those powers, how they were

acquired, how they were used, and how they were lost

in its analysis. This was by design to support a scènes

à faire characterization.

Compounding the above errors, the district court

violated the bedrock principle that an infringement

claim cannot be dismissed unless “no reasonable juror

could find substantial similarity.” See Swirsky, 376

F.3d at 844. This is the same stringent standard that

restricts the authority of district courts to render

judgment notwithstanding the verdict under Fed. R.

Civ. P. 50. Williams, 895 F.3d at 1127 (“[i]t is not the

courts’ place to substitute our [subjective] evaluations

for those of the jurors”); Kaseberg v. Conaco, LLC, 260

F.3d 1229, 1235 (S.D. Cal. 2017).

This rule is necessary, “[s]ince substantial

similarity is usually an extremely close question of

fact.” Twentieth Century-Fox Film Corp., 715 F.2d at

1329 n.6 (denying summary judgment because

“reasonable minds could differ”); see Baxter, 812 F.2d

at 424-25 (same); L.A. Printex, 676 F.3d at 851

(“genuine dispute of material fact” as to works’

similarities). Due to the detailed nature of this factual

inquiry, even on summary judgment all literary

inferences must be construed “in a manner most

favorable to the non-moving party.” Shaw, 919 F.2d at

1355; accord Kouf v. Walt Disney Pictures &

Television, 16 F.3d 1042, 1045 n.3 (9th Cir. 1994)

(determining substantial similarity as a matter law is

“not highly favored”); Atkins v. Fischer, 331 F.3d 988,

995 (D.C. Cir. 2003) (same). “A jury ultimately may

conclude that the similarities between the protected

elements in” the works “are not ‘substantial,’” but

because “‘[s]ubstantial similarity’ is a question of fact,

[] summary judgment is only appropriate if no

reasonable juror could differ in weighing the

evidence.” Leigh v. Warner Bros., Inc., 212 F.3d 1210,

1216 (11th Cir. 2000).

A fortiori, on a 12(b)(6) motion, disputes as to

substantial similarity and all literary inferences to be

drawn from the works must be construed in a

plaintiff’s favor. The extrinsic test must be applied

with the utmost caution as plaintiffs have no

opportunity to present relevant evidence, e.g., expert

literary opinion and evidence of access. See Dezendorf

v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851

(9th Cir. 1938) (denying 12(b)(6) motion; though court

can compare works’ contents at pleading stage, “court

will rarely impose its judicial knowledge” as to

originality/similarity); Copeland v. Bieber, 789 F.3d

484, 486 (4th Cir. 2015) (denying 12(b)(6) motion

under “no reasonable juror standard”).

Where, as in this case, the substantial-similarity

inquiry compares a screenplay to a film, the analysis

is especially open to a range of interpretations,

requiring close analysis of works’ elements that often

intertwine in “subtle and complex” ways. Baxter, 812

F.2d at 424. Whenever such expressive elements could

yield conflicting reactions among jurors, the court

must leave such questions to the jury. Instead, the

district court here substituted its own subjective

reactions for those of the jury. In effect, the district

court became a jury of one.

Further, instead of viewing the works in the light

most favorable to Carlini, the district court compared

them in the light most favorable to Paramount to

achieve a particular result—dismissal.

CONCLUSION

For the above reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,